| (a) General statement. In a contested case before the
Board, proceedings shall be governed by the Administrative Procedure
Act (APA), except as specifically provided in the Optometry Act. In
any contested case, opportunity shall be afforded to all parties to
respond and present evidence and argument on all issues involved.
Unless precluded by law, informal disposition may be made of any contested
case by stipulation, agreed settlement, consent order, default, refund
of examination fees, remedial plan or dismissal.
(b) Informal disposition of contested case. Prior to
the imposition of disciplinary sanctions, remedial plan, or administrative
penalties against a respondent (a licensee or a person issued a cease
and desist order), the respondent shall be offered an opportunity
to attend an informal conference and show compliance with all requirements
of law, in accordance with the APA.
(1) Informal conferences shall be attended by the Executive
Director, the Board's legal counsel, the two members of the Investigation-Enforcement
Committee, a public member, and other representatives of the Board
as the Executive Director and legal counsel may deem necessary for
the proper conduct of the conference. The respondent and/or the authorized
representative may attend the informal conference and shall be provided
an opportunity to be heard.
(2) In any case where charges are based upon information
provided by a person who filed a complaint with the Board (complainant),
the complainant may attend the informal conference, and shall be provided
with an opportunity to be heard. Nothing herein requires a complainant
to attend an informal conference.
(3) Notice of the informal conference shall include:
(A) a statement of the legal authority, jurisdiction,
and alleged conduct under which the enforcement action is based, with
a reference to the particular section(s) of the statutes and rules
involved;
(B) an offer for the respondent to attend an informal
conference at a specified time and place and show compliance with
all requirements of law, in accordance with Chapter 2001 of the Administrative
Procedure Act;
(C) a statement that the respondent has an opportunity
for a hearing before the State Office of Administrative Hearings on
the allegations; and
(D) the following statement in capital letters in 12
point boldface type: FAILURE TO RESPOND TO THE ALLEGATIONS, BY EITHER
PERSONAL APPEARANCE AT THE INFORMAL CONFERENCE OR IN WRITING, WILL
RESULT IN THE ALLEGATIONS BEING ADMITTED AS TRUE AND THE RECOMMENDED
SANCTION MADE AT THE INFORMAL CONFERENCE BEING GRANTED BY DEFAULT.
The notice shall be served by delivering a copy to the respondent
or licensee in person, by courier receipted delivery, or by certified
or registered mail, return receipt requested, to the licensee's last
known address of record as shown by agency records, not less than
10 days prior to the date of the conference.
(4) The respondent shall respond by either personal
appearance at the informal conference or in writing no later than
the date of the informal conference. If the respondent chooses to
respond in writing, the response shall admit or deny each of the allegations.
If the respondent intends to deny only a part of an allegation, the
respondent shall specify so much of it is true and shall deny only
the remainder. The response shall also include any other matter, whether
of law or fact, upon which the respondent intends to rely for his
or her defense. If the respondent fails to respond to the notice specified
in this subsection, the matter will be considered as a default case
and the respondent will be deemed to have:
(A) admitted all the factual allegations in the notice
specified in this subsection;
(B) waived the opportunity to show compliance with
the law;
(C) waived notice of a hearing;
(D) waived the opportunity for a hearing on the allegations;
and
(E) waived objection to the recommended sanctions made
at the informal conference.
(5) The Investigation-Enforcement Committee may recommend
that the Board enter a default order, based upon the allegations set
out in the notice specified in this subsection, adopting the recommended
sanctions made at the informal conference. Upon consideration of the
case, the Board may enter a default order under §2001.056 of
the Administrative Procedure Act or direct that the case be set for
a hearing at the State Office of Administrative Hearings.
(6) Any default judgment granted under this section
will be entered on the basis of the factual allegations in the notice
and upon proof of proper notice to the respondent's address of record
as specified in paragraph (3) of this subsection.
(7) A motion for rehearing which requests that the
Board vacate its default order under this section shall be granted
if the motion presents convincing evidence that the failure to respond
to the notice specified in this subsection was not intentional or
the result of conscious indifference, but due to accident or mistake,
provided that the respondent has a meritorious defense to the factual
allegations contained in the notice specified in this subsection and
the granting thereof will not result in delay or injury to the public
or the Board.
(8) Informal conferences shall not be deemed to be
meetings of the Board and no formal record of the proceedings at the
conferences shall be made or maintained.
(9) The Investigation-Enforcement Committee shall consider
the Penalty Schedule in §277.6 of this title to determine the
parameters of any administrative fine or penalty to recommend to the
respondent and the Board. The Investigation-Enforcement Committee
may recommend a settlement to the respondent that includes an agreed
order to refund all or part of the examination fee paid by the complainant
to the respondent. This settlement must be approved by the Board pursuant
to subsection (b)(10).
(10) Any proposed order shall be presented to the Board
for its review. At the conclusion of its review, the Board shall approve,
amend, or disapprove the proposed order. Should the Board approve
the proposed order, the appropriate notation shall be made in the
minutes of the Board and the proposed order shall be entered as an
official action of the Board. Should the Board amend the proposed
order, the Executive Director shall contact the respondent to seek
concurrence. If the respondent does not concur, the provisions of
the next sentence shall apply. Should the Board disapprove the proposed
order, the case shall be rescheduled for purposes of reaching an agreed
order or in the alternative forwarded to the State Office of Administrative
Hearings for formal action.
(c) Formal disposition of a contested case. All contested
cases not resolved by informal conference shall be referred to the
State Office of Administrative Hearings.
(1) Notice. The respondent shall be entitled to reasonable
notice of not less than 10 days. Notice shall include the matters
specifically required by the APA, to wit:
(A) a statement of the time, place, and nature of the
hearing;
(B) a statement of the legal authority and jurisdiction
under which the hearing is being held;
(C) a reference to the particular section of the Act
and rules involved; and
(D) a short and plain statement of the matters asserted.
(2) Service of notice. The notice of hearing and a
copy of the formal complaint shall be served on the respondent's last
known address at least 10 days prior to the hearing. Service on the
respondent shall be complete and effective if the document to be served
is sent by registered or certified mail to the respondent at the address
shown on the respondent's annual renewal certificate.
(3) Filing of documents. All pleadings and motions
relating to any contested case pending before the State Office of
Administrative Hearings shall be filed with the State Office of Administrative
Hearings. They shall be deemed filed only when actually received.
(4) Motion for continuance. Continuances may be granted
by the State Office of Administrative Hearings in accordance with
procedural rules established by that agency.
(5) Transcription. Proceedings, or any part of them,
must be transcribed on the written request of any party. The agency
may pay the cost of the transcript or assess the cost to one or more
parties.
(6) Discovery. Requests for the issuance of subpoenas,
requests for depositions and for production of documents, and other
discovery matters shall be governed by the APA.
(d) If, after receiving notice of hearing, a party
fails to appear in person or by representative on the day and time
set for hearing, the Administrative Law Judge may proceed in that
party's absence and, as authorized by applicable law, may issue a
proposal for decision or order against the defaulting party in which
the factual allegations against that party in the notice of hearing
are deemed admitted as true without the requirement of submitting
additional proof.
(e) Any default judgment entered under this section
shall be issued only upon adequate proof that proper notice was provided
to the defaulting party, and such notice includes disclosure, in 12
point, bold-faced type: FAILURE TO RESPOND TO THE ALLEGATIONS, BY
EITHER PERSONAL APPEARANCE AT THE INFORMAL CONFERENCE OR IN WRITING,
WILL RESULT IN THE ALLEGATIONS BEING ADMITTED AS TRUE AND THE RECOMMENDED
SANCTION MADE AT THE INFORMAL CONFERENCE BEING GRANTED BY DEFAULT.
Proper notice may be established by proof that the Board complied
with subsection (c)(1) and (2) of this section.
(f) This section does not preclude the agency from
informally disposing of a case by default under the agency's statute
or rules in the event the respondent fails to file a timely written
response or other responsive pleading required by the agency's statute
or rules.
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| Source Note: The provisions of this §277.2 adopted to be effective August 11, 1983, 8 TexReg 2934; amended to be effective January 7, 1994, 18 TexReg 9931; amended to be effective August 2, 1998, 23 TexReg 7564; amended to be effective September 19, 2004, 29 TexReg 8812; amended to be effective March 23, 2006, 31 TexReg 2159; amended to be effective March 23, 2014, 39 Texeg 2079; amended to be effective February 12, 2023, 48 texReg 678 |
